So as most everybody knows the FCC has issued two massively important TCPA orders set to take effect in 2025.

First is the one-to-one consent rule which modifies the definition of express written consent found in 47 CFR 64.1200(f)(9) and requires consent to be provided to a single identified seller at a time to be valid for marketing calls or texts made using regulated technology.

The second is a critical rule expanding the presumed scope of consumer revocation requests to absurd lengths– and stripping callers of the ability to continue contacting consumers who have opted-in to multiple message types based on a revocation of a single type.

Not good.

But these rulings are theoretically binding on the courts under something called the Hobbs Act so once the ruling go into effect they are binding (the one-to-one rule is presently being challenged in a Hobbs Act proceeding in the Eleventh Circuit. Nobody challenged the revocation rule, however, and I cannot fathom why that is.)

Except that the Hobbs Act is currently under attack at the US Supreme Court in a case called McLAUGHLIN CHIROPRACTIC ASSOCIATES, INC., v. McKESSON CORPORATION, ET AL. with the parties debating whether the Act is inconsistent with the due process clause of the US Constitution.

Well the oral argument in McKesson was yesterday and it was a real wild one. The justices and the counsel were talking over each other so much the Chief Justice had to step in at times.

But despite all the fireworks the positions were not terribly fleshed out.

The petitioner suggested repeatedly that the Hobbs Act didn’t need to be struck down for them to win–and several members of the court seemed to agree.

The respondent seemed to concede the Hobbs Act wasn’t even all that binding– people and companies that didn’t have an “Adequate” opportunity to challenge the agency action cant be bound by it–which suggested the Hobbs Act didn’t really prevent challenges past maybe 5 or 10 years in reality.

And Justice Thomas seemed convinced the Hobbs Act really didn’t so anything more than require district courts to assume the validity of agency action pending appellate court review–which he seemed fine with.

All in all the Hobbs Act suddenly looks like it isn’t going away after all, although it may certainly be neutered in a few ways. Then again, the Court may simply find the challenged order wasn’t legislative action to begin with: “just a piece of paper in the world?” to quote Justice Gorusch, and evade the entire question.

I must say I expected to hear a much more hostile court addressing the Hobbs Act but that simply didn’t happen. Indeed the Justices seemed downright–and unusually–resistant to making any kind of sweeping ruling in this case. Part of me wonders whether they’ll simply determine cert was improvidently granted and just remand.

Regardless we will pay very close attention here. With a ruling expected in May in this one we should have a very good sense of just how binding FCC rulings under the TCPA will be treated moving forward. And that’s important because we really do not want to be left wondering too long given the sweeping changed the FCC is imposing on TCPAWorld denizens.

Oh, and left I neglect to mention it, with Trump now in office the FCC’s one-to-one rule may not even go into effect on January 27, 2025 as it was long supposed to.

So many issues are up in the air. Movement by land and by sea and by ground, as it were.

We’ll keep track of it all for you.